Jonel Construction Co.

JONEL CONSTRUCTION CO. 455 International Brotherhood of Electrical Workers, Local No. 5, AFL-CIO and Jonel Construction Co., Inc. Case 6-CC-388. May 9,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On July 28, 1966, Trial Examiner A. Bruce Hunt issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief; and the General Counsel filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below , and hereby orders that the Respondent , International Brotherhood of Electrical Workers, Local No. 5, AFL-CIO, Johnstown, Pennsylvania, its officers , agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order , as herein modified: 1. Delete paragraphs 1(a) and (b) and insert the following: "(a) Inducing or encouraging employees of Jonel Construction Co., Inc., H. A. Sloan Plumbing Contractor, and Griffith and Petz Heating and Air Conditioning Contractors engaged on the Labor Temple project in Johnstown , Pennsylvania, to refuse in the course of their employment to perform any service with an object of forcing or requiring any person to cease doing business with Holsopple Electric Supply Co., Inc." "(b) Threatening, coercing, or restraining said Jonel, Sloan , Griffith , and Petz, or the United Steelworkers of America , AFL-CIO, with an object of forcing or requiring any such person to cease doing business with said Holsopple." 2. Amend the notice by (a) deleting from the first indented paragraph "or any other individuals employed in an industry affecting commerce"; and (b) deleting from the second indented paragraph "any other person engaged in an industry affecting commerce," and inserting in its stead "United Steelworkers of America , AFL-CIO". MEMBER FANNING , concurring in the result: While I agree with the majority that the Respondent has violated the Act, and join with them in adopting the Trial Examiner's Recommended Order as modified , I do so for reasons other than those as set forth by the Trial Examiner and adopted by my colleagues. In my judgment , the picketing of the electrical subcontractor, with whom assertedly the Respondent had a primary dispute, did not conform to the standards required by our Moore Dry Dock doctrine.2 The picket signs, which were introduced into the record , did not identify Holsopple, the primary employer, as the employer being picketed, and, in addition , by identifying the Steelworkers as the owners of the building under construction, sought the enmeshment of a neutral to the dispute. Accordingly , I would find Section 8(b)(4)(i) and (ii)(B) to have been violated3 in the respects found by the Trial Examiner. ' The General Counsel has excepted to the failure of the Trial Examiner to include as one of the "persons " threatened , coerced, or restrained, the Steelworkers, owner of the budding undergoing renovation For reasons stated in Local 895, International Brotherhood of Teamsters , etc (Eastern New York Construction Employers, Inc), 153 NLRB 993, Sheet Metal Workers International Association, Local Union No 299, AFL-CIO (S M Kisner), 131 NLRB 1196 , and Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Picker X-Ray Corporation), 128 NLRB 566, the General Counsel's exception has merit and the Recommended Order shall be modified accordingly 2 Sailors' Union of the Pacific (Moore Dry Dock Company), 92 NLRB 547 9 Cf. International Brotherhood of Electrical Workers, Local Union No. 11 , AFL-CIO, etc (LC Electric Contractors), 154 NLRB 766 (dissenting opinion) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A. BRUCE HUNT, Trial Examiner: This proceeding, in which the charges were filed on January 5 and February 7, 1966, and the complaint was issued on February 18, 1966, involves allegations that the Respondent, International Brotherhood of Electrical Workers, Local No. 5, AFL-CIO, violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et seq. On April 25, 1966, I conducted a hearing at Johnstown, Pennsylvania, at which the Respondent and the General Counsel were represented by counsel. Upon 164 NLRB No. 58 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the entire record and my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE EMPLOYERS Jonel Construction Co., Inc. (Jonel), the Charging Party, is a Pennsylvania corporation which has its principal office at Johnstown, Pennsylvania. It is a general contractor in the building and construction industry. As will appear, during December 1965 and the forepart of 1966, Jonel was the general contractor on a project in Johnstown. The materials which were shipped to the project from points outside Pennsylvania exceeded $100,000 in value. Holsopple Electric and Supply Co., Inc. (Holsopple), a Pennsylvania corporation, has its principal office in Holsopple in that State and is an electrical contractor in the building and construction industry. As will appear, the Respondent had a dispute with Holsopple to whom Jonel subcontracted certain work. During 1965, Holsopple purchased materials valued in excess of $50,000 which were shipped to it from points outside Pennsylvania. Additionally, during 1963, in an unreported case, Case 6-RC-3433, the Board asserted jurisdiction over Holsopple's business, H. A. Sloan Plumbing Contractor (Sloan) and Griffith and Petz Heating and Air Conditioning Contractors (Griffith) are contractors in the building and construction industry who performed, respectively, plumbing and heating work as subcontractors of Jonel at the project discussed hereinafter. I find that Jonel, Holsopple, Sloan, and Griffith are employers engaged in commerce, or in an industry affection commerce, within the meaning of the Act. H. THE RESPONDENT B. Holsopple 's Labor Relations On November 19, 1963, in Case 6-RC-3433, the Board certified International Hod Carriers', Building and Common Laborers Union of America , Local Union No. 910, AFL-CIO (Local 910), as the exclusive representative of Holsopple's electricians . Thereafter Holsopple and Local 910 executed an agreement which was in effect at the time of the hearing. Some of the provisions of that contract are less favorable to electricians than the provisions of agreements which the Respondent has negotiated with electrical contractors. Moreover , Holsopple paid one or more electricians on the Labor Temple project less than the wage rates set forth in the contract with Local 910. The question whether Holsopple breached that contract at other projects was the subject of an offer of proof by the Respondent, as recited in the footnote.[ C. The Issues The issues are whether the Respondent (1) orally threatened Jonel in an effort to prevent the award of a subcontract by Jonel to Holsopple, and (2) by picketing the Labor Temple project after the award of such subcontract, induced employees of Jonel, Sloan, Griffith, and other employers to cease work with an object of forcing Jonel to terminate its contract with Holsopple , all in violation of Section 8(b)(4)(i) and (ii)(B) of the Act.? The Respondent denies that it threatened Jonel. It admits that it picketed the project, but asserts that it engaged in lawfully publicizing Holsopple's standard wages and working conditions, seeking thereby to preserve the standards which it had achieved in collective bargaining over the years. The principal question to be answered is the object or objects of the Respondent's conduct. International Brotherhood of Electrical Workers, Local No. 5, AFL-CIO, is a labor organization which admits to membership electricians in the Johnstown , Pennsylvania, area. III. THE UNFAIR LABOR PRACTICES A. The Project At times material, Jonel was the general contractor engaged in renovating a building, known as the Labor Temple, which is owned by United Steelworkers of America, AFL-CIO (Steelworkers), and which is located on Main Street in the downtown section of Johnstown. Holsopple, Sloan, and Griffith were subcontractors on the project. During January 1966, the Respondent picketed the project because of its dispute with Holsopple. I Evidence concerning Holsopple's rates of pay at the Labor Temple project was received Evidence concerning such rates at other projects was rejected, following which the Respondent offered to prove through Warren Everly, an investigator for the Prevailing Wage Division, Pennsylvania Department of Labor and Industry, that at a time material Holsopple was engaged on a public project, that Holsopple did not pay its five employees the minimum wages required by the State 's Prevailing Wage Act, that Holsopple made an admission to that effect to Everly, that Holsopple wrote checks to its employees in the amounts of back wages due, that the checks were delivered to Everly, that thereafter the checks were mailed to the employees by the State Department of Labor and Industry, that only one employee cashed his check, that the other four employees gave their checks D. The Events William H. Branthoover is assistant business manager and vice president of the Respondent. John E. Gelormino is president of Jonel. Glenn R. Yoder is general manager of Holsopple. On December 7, 1965, Branthoover called at Gelormino's office and asked the latter who would do the electrical work at the Labor Temple. The two men discussed the fact that Yoder's bid had been $7,500 less than that of Church & Murdock, an electrical firm under contract with the Respondent. Branthoover said that the difference in the bids might be due to low wages paid by Holsopple or to an error by Church & Murdock in calculating their bid. Branthoover also said that Gelormino should award the electrical work to "a fair contractor," that Yoder had been under contractual relations with the Respondent upon three occasions within the last decade or to Holsopple upon its representation that funds were not available to cash the checks, and that the State Department of Labor and Industry has charged Holsopple ' s general manager, Glenn R Yoder, with fraud, perjury, and violations of the Prevailing Wage Act 2 Section 8(b)(4) of the Act provides, insofar as it need be recited, that shall be an unfair labor practice for a labor organization (i) to induce or encourage any individual employed in an industry affecting commerce to refuse in the course of his employment to perform any services, or (ii) to threaten, coerce, or restrain any person engaged in an industry affecting commerce, where in either case an object is: (B) to force or require any person to cease doing business with any other person. JONEL CONSTRUCTION CO. more, that Yoder had "violated every rule and regulation of the working agreement and the wages that were prescribed to be paid," and that Yoder's "word, his signature, isn't any good." Gelormino said that he would talk with Yoder. Branthoover said that he would ascertain whether there had been an error in the bid of Church & Murdock, but the record does not disclose what Branthoover learned. In the conversation , Branthoover sought to persuade Gelormino to award the electrical work to a "union contractor," that is, one under contract with the Respondent.3 On December 13, representatives of several building trades unions, including Branthoover for the Respondent and James Crotzer for Local 910, met with Gelormino and Yoder in Gelormino's office. Insofar as there is evidence, the meeting was arranged by Gelormino. The record discloses little concerning remarks made at the meeting by representatives of unions other than the Respondent and Local 910. It also does not disclose the complete remarks of anyone. It is clear, however, that relations between the Respondent and Local 910 appear to have been pleasant and that Crotzer expressed a willingness to transfer the membership of Holsopple's electricians from Local 910 to the Respondent, but Branthoover rejected the offer with the remark that membership in the Respondent as a journeyman required completion of an apprentice program plus 5 years' experience. It is also clear that Gelormino's effort to obtain agreement for Holsopple to do the electrical work was unsuccessful. The principal question concerning the meeting is whether Branthoover threatened that there would be "trouble" if the award of electrical work should be given to Holsopple. Gelormino, Crotzer, and Yoder testified that Branthoover said that there would be trouble in that event. On the other hand, Branthoover denied that he spoke of "trouble." According to Branthoover, he said that the Respondent "had had previous experiences with" Yoder, that Yoder's "signature isn't any good; neither is [Yoder 's] word; so [Gelormino] could possibly expect repercussions."4 I conclude that Branthoover spoke of trouble. I rely particularly upon Crotzer's testimony. He impressed me favorably. On the other hand, Yoder impressed me unfavorably, and Gelormino had a faulty recollection at times. Jonel awarded the subcontract to Holsopple. During the latter part of December, work on the project began. On January 4, 1966, the Respondent commenced picketing. One sign read: We Protest Sub Standard Wages Paid to Electrical Workers On This Job Do You Know That The Owner of the Labor Temple Is United Steel Workers of America Local Union No. 5, I.B.E.W., AFL-CIO 9 The findings of this paragraph are based upon Branthoover's testimony for the Respondent ' Further testimony by Branthoover is that Gelormino asked what Branthoover would do if Gelormino should give the electrical contract to Holsopple and that My answer was that he gave it to some person , or other-or some contractor, or other, in signed relations with Local No. 5, I didn't know whether the other trades would work with him This portion of the transcript is obviously inaccurate My trial notes do not contain a basis for correcting the transcript and there A second sign read: To The Public Would You Believe That On This Job Sponsored By Labor Temple United Steel Workers of America Sub Standard Wages Are Being Paid to Electricians 457 WE PROTEST, L.U. NO. 5, I.B.E.W., AFL-CIO There is no evidence that any picket orally suggested to any worker on the project that he cease work or to any truckdriver that he not deliver materials to the project. Nevertheless, various employees of Jonel and of subcontractors other than Holsopple ceased work on the project, and some truckdrivers did not make deliveries. Laborers, who did not cease work, were laid off by Gelormino when the time came that there was no work for them. Within a week or two after January 4, Gelormino held conversations with various representatives of building trades unions. Work on the project was resumed. About February 1, picketing ceased pursuant to any agreement that with its cessation the General Counsel would withhold further action in an injunction proceeding which he had instituted under Section 10(1) of the Act. E. Conclusions The initial issue involves Branthoover's threat to Gelormino on December 13 that there would be "trouble" if the electrical contract should be awarded to Holsopple. In Lafayette Building and Construction Trades Council, et. al. (Southern Construction Corporation), 132 NLRB 673, the Board held that a threat of "trouble ," made to a general contractor with an object of forcing it to cancel a subcontract, violated Section 8(b)(4)(ii)(B) of the Act. The Respondent argues in its brief, however , citing Plumbers & Pipefitters Local No. 471, etc. (Leo E. Murray, d/b/a Wyckoff Plumbing), 135 NLRB 329, and Construction, Building Material and Miscellaneous Drivers Local Union No. 83, etc. (Marshall & Hoas), 133 NLRB 1144, that the mere giving of notice to a prime contractor of prospective strike action against a subcontractor does not violate Section 8(b)(4)(ii)(B). Thus, the Respondent would equate Branthoover's threat with such notice. The fact , however, is that Branthoover testified specifically that he did not threaten to picket the project or to cause any work stoppage . Accordingly, upon the basis of Southern Construction, I find that the Respondent violated Section 8(b)(4)(ii)(B). Turning to the Respondent's picketing after Holsopple had begun work on the project , the General Counsel does not dispute the accuracy of the representations on the picket signs.5 I have no doubt that the Respondent sought by its picketing to protest the fact that the working conditions of Holsopple's electricians tended to lower the has been no motion by any party to correct it ' Although the General Counsel does not dispute the representations , he asserts that the references in the signs to the Steelworkers , owner of the Labor Temple being renovated, were an invalid attempt by the Respondent to involve the "neutral" Steelworkers On the other hand, the Respondent argues, inter alia (1) that it was entitled to appeal to the Steelworkers in protesting working conditions on the project , and (2) that Section 8(b)(4) was intended to protect neutral employers , not neutral persons, and that the Steelworkers was, at most , a neutral person This issue need not be discussed further or resolved 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standards which the Respondent had achieved in collective bargaining. The question, however, is whether the Respondent had an additional object, namely, to force Jonel to cancel its contract with Holsopple. If there was such additional object, the Respondent violated Section 8(b)(4)(i) and (ii)(B). The Building & Construction Trades Council of Philadelphia and Vicinity, AFL-CIO, et al. (Fisher Construction Company), 149 NLRB 1629, enfd. 359 F.2d 62 (C.A. 3). The testimony of Branthoover alone establishes such additional object. Thus, as recited on December 7, 1965, Branthoover sought to induce Gelormino to award the electrical work to a firm under contract with the Respondent, and Branthoover's remarks to Gelormino about Yoder reflect that Branthoover strongly opposed an award of the work to Holsopple. On December 13, Branthoover refused to agree to Holsopple's doing the work and threatened that there would be trouble if Holsopple should do it. There is no evidence that the Respondent anticipated any circumstances under which Holsopple would become unobjectionable to it. I find that the Respondent's invalid object continued after Holsopple began work on the project and that the Respondent's conduct violated Section 8(b)(4)(i) and (ii)(B). Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is a labor organization within the meaning of the Act. 2. Jonel, Holsopple, Sloan, and Griffith are employers engaged in commerce , or in an industry affecting commerce , within the meaning of the Act. 3. By inducing and encouraging individuals employed in industries affecting commerce to refuse in the course of their employment to perform services , with an object of forcing or requiring Jonel to cease doing business with Holsopple, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i)(B) and Section 2(6) and (7) of the Act. 4. By threatening, coercing, and restraining Jonel, Sloan, and Griffith , with an object of forcing or requiring Jonel to cease doing business with Holsopple, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act. requiring any such person to cease doing business with said Holsopple. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its offices and meeting halls, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 6, shall be posted by the Respondent after being duly signed by Respondent's representative, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Promptly after receipt of unsigned copies of said notice from the Regional Director, return to him signed copies for posting by said Jonel, Sloan, and Griffith and Petz, if those persons be willing, at their respective places of business, including all places where notices to their respective employees customarily are posted. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' B In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL OUR MEMBERS , OFFICERS , AND AGENTS AND TO THE FOLLOWING PERSONS AND THEIR EMPLOYEES: JONEL CONSTRUCTION CO., INC., H. A. SLOAN PLUMBING CONTRACTOR, AND GRIFFITH AND PETZ HEATING AND AIR CONDITIONING CONTRACTORS RECOMMENDED ORDER Upon the entire record in the case and pursuant to Section 10(c) of the Act, and in order to effectuate the Act's policies, I hereby recommend that International Brotherhood of Electrical Workers, Local No. 5, AFL-CIO, its officers, agents, and representatives , shall: 1. Cease and desist from: (a) Inducing or encouraging employees of Jonel Construction Co., Inc., H. A. Sloan Plumbing Contractor, Griffith and Petz Heating and Air Conditioning Contractors , or any other individuals employed in an industry affecting commerce , to refuse in the course of their employment to perform any service with an object of forcing or requiring any person to cease doing business with Holsopple Electric and Supply Co., Inc. (b) Threatening , coercing, or restraining said Jonel, Sloan, Griffith and Petz, or any other person engaged in an industry affecting commerce , with an object of forcing or Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to conduct the business of Local No. 5 as required by the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT induce or encourage employees of Jonel Construction Co., Inc., H. A. Sloan Plumbing Contractor, Griffith and Petz Heating and Air Conditioning Contractors, or any other individuals employed in an industry affecting commerce, to refuse in the course of their employment to perform any service with an object of forcing or requiring any person to cease doing business with Holsopple Electric and Supply Co., Inc. WE WILL NOT threaten, coerce, or restrain said Jonel, Sloan, Griffith and Petz, or any other person engaged in an industry affecting commerce, with an object of forcing or requiring any such person to cease doing business with said Holsopple. JONEL CONSTRUCTION CO. 459 Dated By INTERNATIONAL This notice must remain posted for 60 consecutive days BROTHERHOOD OF from the date of posting, and must not be altered, defaced, ELECTRICAL WORKERS, or covered by any other material. LOCAL No. 5, AFL-CIO If anyone has any question about this notice or (Labor Organization) compliance with its provisions, he may communicate with the Board's Regional Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, (Representative) (Title) Telephone 644-2969.